The COVID-19 coronavirus outbreak that has ravaged our nation and world has had many jarring moments. For parents and their children, one of those came with the mass closing of our schools. Tens of millions of children faced having their educations grind to a halt, including 1.1 million children in New York City’s public schools alone — a number which includes two of my own.

While Americans have grown understandably weary of the tech industry, which repeatedly puts its profits ahead of Americans’ personal privacy, recent offers by companies like Google (via its Google Classroom app) and GoGuardian to provide their remote learning platforms to students for free during the pandemic seemed like a godsend. After all, it would enable U.S. students, at no cost, to continue to learn from the safety of their own homes. 

Maybe the tech industry tiger is changing its stripes. Or maybe the tech industry devil just glued a fake halo on top of its horns. The answer to that question all depends on whether they will insist on undermining students’ privacy as a condition of helping them.

For years, the ACLU has expressed concerns about how the tech industry’s educational products — often classified under the name EdTech — are used to gather massive amounts of highly personal student information. Further, some of these products troublingly enable EdTech companies and schools to spy on students despite no evidence of wrongdoing — a practice that further exacerbates the over-disciplining of students of color. We at the ACLU have launched national efforts to encourage states to pass laws protecting student privacy, offered suites of model bills to assist their efforts, and spoken out against ever-increasing student privacy invasions.

Now that the COVID-19 pandemic has created an unprecedented opportunity for EdTech companies to make the use of their privacy-violating educational products nearly universal, there is a real risk that these companies, under the guise of a generous act, will use this opportunity to create personal information dossiers on an entire generation of young Americans.

One could argue that such an interpretation is very cynical; it is a textbook example of looking a gift horse in the mouth. Perhaps it is. In fairness, the tech industry has made trillions of dollars giving away “free” products that are not actually free: Americans, knowingly or unknowingly, pay for their products by giving them troves of personal information, which the companies then use to make staggering profits.

The good news is that Americans and their governments should not — and do not have to — feel trapped into choosing between students’ education and privacy rights. There is a simple, four-part approach governments and school districts can and should take when accepting (or continuing to use) the “free” remote learning platforms EdTech companies like Google and GoGuardian have offered.  If these EdTech companies are truly acting in the best interests of students and teachers here, they shouldn’t object at all.

It’s as simple as this:

Step One: To the extent these remote learning platforms are being provided for free specifically to help students learn remotely, that is a wonderful act and should be appreciated. Let’s start by thanking these EdTech companies for their generosity.

Step Two: Use of these “free” remote learning platforms, which will likely feel mandatory for students and families during this crisis, should not be conditioned on students allowing EdTech companies to gather up and retain their private and personal information. Governments, including school districts, should insist EdTech companies limit their personal information gathering to only what is directly necessary for their platforms’ remote learning functionality. Moreover, these EdTech companies should be required to expunge all the personal information they gather during this crisis when it resolves, unless a student specifically opts-in to it being retained (via a clear, post-crisis request, and not as part of a broad user agreement they sign now under pressure).

Step Three: Governments and school districts should insist EdTech companies disable any surveillance functions that may accompany their remote learning platforms, including communications and social media monitoring, keyword alerts, and web filtering functions.  Students and their families need these platforms to learn at home, not to allow companies and school districts to spy on them; receiving the former should not be conditioned on exposing oneself to the latter.

Step Four:  To ensure the EdTech companies keep their promises, they should consent to government auditing of their compliance after the pandemic subsides.
If the EdTech companies are truly providing their remote learning platforms for free to help students and their families during this terrible and challenging time, they should have no problem instantly agreeing to these conditions.  If they balk, we will know they are once again the devil in disguise.

Chad Marlow, Senior Advocacy and Policy Counsel, ACLU

Since the Trump Administration first unrolled its policy of forcing migrants to wait in Mexico for their asylum hearings, advocates have been warning that the practice places them in danger. Now, the global coronavirus outbreak is putting an exclamation point on those warnings and adding a new, frightening layer of risk into the lives of asylum seekers stuck in Northern Mexico.

On Monday, reports emerged of asylum seekers who were scheduled to appear in court in the U.S. instead being turned back from border checkpoints by Customs and Border Protection (CBP) officers. That evening, the Department of Homeland Security (DHS) announced that all hearings for asylum seekers returned to Mexico up to April 22^nd would be rescheduled.

According to an attorney based in El Paso, Texas, those hearings are being pushed to late April or early May, although there is no guarantee that the outbreak will have abated by then.

Meanwhile, many asylum seekers have been stuck in dangerous border cities for months waiting for those hearings. Health workers say that now they are vulnerable to the COVID-19 pandemic in ways that would have been avoided if they had been admitted and released into the U.S. for their proceedings.

Under the “Migrant Protection Protocols” (MPP), around 60,000 people have been forced to wait in Mexico while their requests for protection in the U.S. are weighed by the courts. Over 17,000 of them are still waiting on upcoming hearings — more than 6,500 for at least six months.

Last Friday, the U.S. and Mexico announced they were closing the border to “non-essential” travel and the Centers for Disease Control released a public health order suspending “the introduction of certain persons” into the U.S. The order will likely be used to sharply curtail access to the asylum system for anyone who arrives at the border right now.

For those who were already returned to Mexico under the MPP — many of whom are fleeing political persecution, gang violence, and abuse at home — an uncertain future now looms.
 
For the past year, advocates have criticized the MPP as a cruel policy meant to deter people from seeking asylum in the U.S. by forcing them to stay in dangerous areas during a long, drawn-out legal process. Many asylum seekers who return to Mexico under the policy wind up in overcrowded migrant shelters or in some cases, sprawling tent camps near the border.
 
Thus far, no cases of COVID-19 have been reported among any asylum seekers in Mexico. But the numbers of people infected with the disease in states like California and Texas are growing, raising concerns in previous weeks that asylum seekers who attended their hearings could bring the virus back into Mexico with them after being exposed inside the U.S.
 
Linda Rivas, executive director of the El Paso-based legal services organization Las Americas, said last week a client of hers chose to skip a court date she’d been waiting on for months rather than risk entering the U.S.
 
“The idea of having to go back and forth and then going into the shelter space is just really scary,” said Rivas. “The cell phones that we have dedicated for our MPP clients are ringing off the hook. Lots of questions, lots of doubts.”
 
Tania Guerrero, an attorney with the Washington, D.C.-based Catholic Legal Immigration Network, says the federal migrant shelter in Ciudad Juarez has begun to implement precautionary measures, but she fears what might happen if an asylum seeker there contracts the disease.
 
“There’s no social distance,” she said. “Now at least people aren’t on the floor, they have bunk beds, but they’re all crammed into one huge room in a warehouse.”
 
Guerrero said the shelter is now requiring staff and volunteers to wear surgical masks as well as recording the temperature of its residents when they return to the facility:
 
“If you leave, you might not be able to come back. And that’s not just out of fear, it’s out of precaution.”

On the other end of the Texas border, in Matamoros, Mexico — where a tent camp with thousands of asylum seekers has sprung up — humanitarian relief workers say an outbreak of COVID-19 could be catastrophic.
 
Helen Perry, the director of Global Response Management (GRM), an aid organization that provides medical services to the camp’s residents, says she’s bracing for the arrival of the virus.
 
“The camp is close living quarters. Showers, kitchens, sinks, and bathrooms are all communal. They’re kind of crammed in there,” she said.
 
GRM is making plans to build a 20-bed field hospital with the capacity to do basic bloodwork and intravenous rehydration, which she hopes could keep moderate cases from becoming severe if there is an outbreak.
 
“People here are walking around moderately malnourished or chronically dehydrated, and 25 percent of them have underlying chronic health conditions like diabetes and hypertension,” she said. “We feel like we have to react and be able to offer care that could keep them from getting chronically ill and needing to be intubated.”
 
According to Perry, Matamoros has only ten total ventilators in the entire city. Tensions between residents of Matamoros and people living in the camp have spiked since anti-MPP protests temporarily shut down traffic at a major border checkpoints in January, and Perry worries about what could happen if someone in the camp contracts the virus.
 
“There is already stigma that exists against individuals in the camp,” she said.
 
The ACLU sued to end the MPP not long after it first went into effect in Tijuana, Mexico. On February 28^th, the Ninth Circuit Court of Appeals ruled in favor of the ACLU in the suit, agreeing with a lower court that it should be blocked. But on March 11^th, the Supreme Court stepped in and stayed the Ninth Circuit’s order, allowing the policy to remain in effect.
 
Now, because of that policy, asylum seekers in Northern Mexico who traveled to the U.S. hoping to find safety will have to face the COVID-19 outbreak in an environment that was already precarious, and which has now become even more unsafe.
 
If the disease becomes widespread in Northern Mexico, asylum seekers from Central America and elsewhere are unlikely to be at the front of the line for a health care system with limited resources. And with their legal process delayed by at least a month or more, there is no way to tell what the ultimate impact of the crisis will be on their efforts to find safety.
 
“We’re worried about them,” said Guerrero. “They’ve been in limbo for so long, you know?”

Ashoka Mukpo, Staff Reporter, ACLU

Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals.

But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis.

Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly.

For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.”

It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether.

The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them.

We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact.

Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.”

We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit,
Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease.
DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place

There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff.

Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

Naureen Shah, Senior Advocacy and Policy Counsel, ACLU,
& Andrea Flores, Deputy Director of Policy, ACLU's Equality Division